Episode 7: Judith Ashmann-Gerst
California Court of Appeal, Second Appellate District
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Show Notes
Join your host M.C. Sungaila as she talks to Justice Judith Ashmann-Gerst of the California Court of Appeal about her journey to the bench, from night law school to the trial court and then the court of appeal. She also shares some insights for advocates appearing before the court of appeal.
Relevant episode links:
Justice Judith Ashman-Gerst, Perestroika in Paris
About Justice Judith Ashmann-Gerst:
Justice Judith Ashmann-Gerst
Justice Judith Ashmann-Gerst received a Bachelor of Arts degree from UCLA in 1965. While working as a Deputy Probation Officer, she enrolled in Whittier Law School and graduated magna cum laude in 1972. She began her legal career working for the State Attorney General’s Office in Los Angeles, where she handled women’s rights, civil rights and consumer fraud issues. She left that office in 1976, and became Special Counsel to City Attorney Burt Pines, where she provided counsel on policy matters, managed the office’s legislative program, and advised on various legal issues and law reform.
In 1979, Justice Ashmann-Gerst joined the United States Attorney’s Office as the Executive Assistant. She was appointed to the Los Angeles Municipal Court in 1981, and elected to the Superior Court in 1986. For 18 years, Justice Ashmann-Gerst primarily handled criminal matters in the San Fernando Valley, serving as the Supervising Judge of the North Valley District of the Superior Court. She then transferred downtown, presiding over a fast track civil caseload. She was elevated to the Court of Appeal in December 2001.
Transcript
Welcome to the show, which chronicles women's journeys to the bench, bar and beyond and seeks to inspire the next generation of women lawyers. I am very pleased to have as my guest Justice Judith Ashman-Gerst from the California Court of Appeals second appellate district in Los Angeles. Welcome, Justice.
Thank you very much. It’s my pleasure.
I am curious first about your path to becoming a lawyer and how you decided that would be something interesting to do.
It’s my pleasure starting there rather than the path to the bench because it's more interesting how I wound up becoming a lawyer. I grew up in the early days of the common law when women, if they were going to go to college at all, were supposed to be teachers or nurses. As a teacher, you could stay home with your children during the summer. I went to UCLA and my path was I was going to teach. I was going to teach government and math at a secondary school level. In my senior year, you had to go to the fifth year to get a secondary credential.
At the same time, the probation department was recruiting heavily on campus for new probation officers. You didn't need a fifth year. All you needed was your Bachelor's degree. The pay was more. At that time, it was $100 a month more, which was a lot of money at that point. At that time, the caseloads were segregated, girls, boys and ages. I'd be working mainly with teenage girls. I picked the same concept as teaching and helping. I decided to take a whirl and do it and became a probation officer, even a counselor dealing with ten girls in a locked facility.
From there, I had a caseload of girls and also dependency cases that included the probation department that did that at the time. A lot of my friends in the probation department were going to law school. I liked what I was doing but I figured, “Let me try and see what it's like.” I enrolled mid-year in February, which meant it was going to be a 100% night law school. I started and did quite well. Going at night takes four and a half years but your time's going to go by anyway.
It turned out I'd graduated number one in the class so I guess this law thing was okay. At the time, I had a wonderful opportunity and this also goes into some of the issues you wanted to look at. I had a wonderful opportunity to work for the presiding judge of the juvenile court. At night law school, all the teachers were either active judges or practicing lawyers.
Judge Marvin Friedman was a presiding judge and I was in his classes at the law school. He liked my work and arranged with the probation department that I could come and be his court probation officer because there wasn't always a probation officer in court at the time. At the time, it was completely different. Probation officers were like the DA. We wrote the complaint of the petition against the child. I wound up working in his courtroom, which was a very interesting experience to see how does a judge works and what a judge is like.
We developed a very close relationship. He became my mentor. There’s a funny part that I'd like to share. I was in law school at night and our bailiff, Maurice, was also in law school at night. Around the time of the finals, the judge would tour around the courtroom and other people were like, “Maurice is studying.” It was cute. He was my mentor. He helped me get my first job at the attorney general's office. That's how I became a lawyer and wound up with a wonderful position that would help me ultimately become a judge.
At the attorney general's office, I was so fortunate to wind up in the civil rights and consumer protection unit. For civil rights, it was half a position at the time. It's much more expanded now but it was half a position. I was able to focus on all kinds of civil rights issues especially women's rights issues, which in the early ‘70s was a total situation than it is now.
In Sacramento, I lobbied a lot of legislation on behalf of minorities of all kinds. There were a lot of bills that protected against discrimination of race, religion, national origin but not sex. Several of the bills under the Civil Rights Act and Rumford Fair Housing Act isn’t specific in protecting women. I was able in the attorney general's office to sponsor those bills and lobby them. That was a great experience. I spent about a third of my time up in Sacramento lobbying these bills. Some people at the time, you'll recognize their names. Mel Levine was up there and a lot of people who were very important in the Democratic Party. I had an unusual experience of being able to do that.
In addition to filing lawsuits, I did file a very interesting lawsuit against a private club up in Eureka that did not allow women, not even as guests. There was a woman who was one of the Environmental Commissions, a well-known woman who was up there because there was going to be a meeting of this commission in Eureka at this private club. They wouldn't let her in the meeting. She went to the back, knocking on the door. That started the lawsuit.
Even though it was a private club, it was the only place in Eureka where professionals could meet. She was excluded even though other professionals that were not members could be there. I filed a lawsuit against an apartment complex in San Bernardino that discriminated against minorities. There’s an African-American couple that would go and apply for housing and they would be denied. I was representing the Fair Employment Practices Committee at the time. We would send out a Caucasian couple to apply for the same apartment and we know what happened. They would get it.
You can do what you want to do. You don't have to be stuck in one particular path. There are different paths to where you want to go.
I was able to file those lawsuits to make an impact on a variety of minorities and women. I was there for about four and a half years. We were able to accomplish a lot. Howard Berman helped me and a very close friend of mine write the Howard Berman Equal Credit Opportunity Act, which provided credit for women. That was a big thing then.
Women could not get credit in their own name. It was in their husband's name. What was going to happen? Unfortunately, you have to look to the reality of life. Women were going to possibly become widows or divorcees and they wouldn't have credit in their own name. That became a very significant piece of legislation for women in this state.
What an exciting time to be involved in that, all of those changes happening, and tobe at the forefront.
It was an exciting time. At the same time, we're starting to move towards the issue of gay men, women and housing. There was a time when it wasn't the case. I was lobbying for a bill that would prevent sex discrimination, including gay couples. During the hearing, one of the legislators said to me, “Are you telling me that the little old lady who owns an apartment building has to rent an apartment to two men and the furnishings are double beds?" I said bluntly, “Yes.” I know it's hard for people to think. That was the way it was back in the ‘70s and early ‘80s.
It’s not that long ago. It is interesting to hear that.
From that, I knew that Burt Pines, who was the progressive city attorney in the city of Los Angeles, had been hiring active people in the environment, consumer protection and a lot of those areas. I knew he was going to be running for attorney general. I had the opportunity to go to his office to be a trial attorney and get some trial experience, which I thought that's going to be a great opportunity to get in a courtroom with juries. I had been in a courtroom at the attorney general's office with judges and other justices but this would be an opportunity to get some trial experience.
I went and did criminal jury trials there for six months. The plan was if that all worked out, I would work with him on some more policy issues. I became one of his special counsels and did work on policy for him. It was a time when the city attorney's office was focusing on nursing home abuse. We have legislation on nursing home abuse. There was a backup in Sacramento on legislation, plus, we were dealing with the issue of the police department going into gay bars and encouraging activities that resulted in an arrest. We were active in that as well.
I'm working on law but I also have one toe in the political arena as well. When Burt filed to run for attorney general, I took a leave of absence from the office and started working in a different office in Downtown LA on his campaign. I was issues and research director, which was such an exciting time. I traveled the state with him when he was making appearances or involved in debates. I helped write memos for him on these issues that are important to the attorney general such as Criminal Law and civil issues because I had been there and done that.
Unfortunately, Burt lost in the primary. It was a hair but he lost. At that point, he wasn't going to stay at the attorney general at the city attorney's office. His term was going to expire. I had a very good friend, Andrea Ordin. I took her job at the attorney general's office when she left to have her child. We became friends. She wound up introducing me to my current husband many years ago. She was appointed as a US attorney for the Central District. She wanted someone that she could trust to come in, help get settled and do some outreach, political media things for her as well as doing some work. That's a great experience for me.
I went and worked for Andrea but it was for a short time because I knew I might get appointed. At that time, I had made political contacts up in Sacramento. I was very involved in county bar activities as a young lawyer because of Andrea. Andrea subsequently became the CEO for the county bar, whatever it was called at the time. I got involved in committee work. I was on the barrister's board and became the barrister's officer. I was doing the work on all political and law end. I was also involved in community activities. That's how the progression was.
It was a whole range of activities and Burt Pines eventually became an appointments secretary. That worked out very well.
I first got appointed by Jerry Brown the first time around to what was in the municipal court, which we know doesn't exist anymore. I was appointed in ’81 and in ‘86, I would have had my ten years in to go onto the superior court. I wasn't appointed because it was right at the end of Jerry Brown's term that I got my ten years. I applied and I wasn't getting appointed and I knew why.
Some of the legislators connected me with the legislation where women's rights are being too liberal for them. I decided I was going to run for superior court. I put together a campaign. Having worked on Burt’s campaign, I had the process and people from that campaign who were willing to help me. Plus, all my county bar activities would help. I put together a campaign and ran for the superior court in 1986 and won in the primary, which was exciting and a big relief. That's how I got to the superior court.
I didn't realize that you had an election.
I was out there running around, making appearances and raising money. That's wonderful. I'm trying to raise money for the judicial position. You can't help anybody in that role. You're asking family, friends and lawyers who might be in front of you. You have to make sure there are no conflicts there and the people who contribute to your campaign are coming into your cord. You have to make sure that you recuse yourself.
It was busy. I had a three-year-old at the time. I had a very supportive husband who was also a lawyer. It was successful. In ‘86, when I was in municipal court, I was out in Van Nuys. In superior court, I wound up back in Van Nuys because I wanted to be in Van Nuys. I happened to be in the right place at the right time.
I want to get a sense of contextually women's progress in each of these times. When you first come out of law school and you were working in government positions, were there are a lot of opportunities in private practice or not? The same thing when you became a judge, were there are a lot of women judges?
Starting off in finishing law school and where to go, no. We know the stories of Ruth Bader Ginsburg and Sandra Day O'Connor being hired like, “We need a secretary.” There was that issue to overcome but I had another issue to overcome and that’s I was going to night law school. It didn't matter how high I graduated in the class. It was still a night law school. That was for private practice. For the government, that wasn't an issue and remains not an issue. The government has always been a place where people with different backgrounds could find a home and profession, which is wonderful.
You worked on such impactful things.
As a lawyer, you need time to think about the case while getting it done in a timely fashion.
Here I was from brand X law school. It wasn't brand X. It was Beverly Rubens’ law school. She had been a very well-known teacher at Southwestern. She started her own law school. It was an exclusive night law school. It was called Beverly College of Law on Larchmont. Since I was working days, I'm going to law school three nights a week. My dinner often was chips and Coke off of the catering truck. I would like to say that you can do it. You can change things. You don't have to be stuck in a particular path.
No one was there to give me the support. I was working and doing it on my own. My family knew nothing about the law. They’re mainly science people. I did this all by myself. If I had known, I might have chosen some other path but that was the one open to me. I work full-time in the day and go to law school full-time at night for four and a half years.
The time goes by anyway. Do something about it. It was hard and thank goodness for the government. Even having been at the attorney general's office, it still would have been difficult being a woman from a night law school. Things have changed significantly and people now look to someone's capabilities and understand there are different paths to get where we go.
There's certainly a lot of tenacity, time management and all of the things that you need to have in spades to do the night school approach that you were taking that people would find valuable as an employer.
From there, I was at the superior court in Van Nuys doing mainly criminal jury trials, the heaviest and ugliest of trials. Is there anything about women or minorities on the court? Not in the municipal court, particularly. The municipal court was heavenly. I was being treated professionally, understanding of a situation, helpful and there was no discrimination whatsoever between men, women and minorities there. I can't say the same for the superior court then. I know it's different now because I was there up until 2001. At superior court, not so much.
My first experience on the superior court was a very ugly criminal case. It was a death penalty case involving a police detective who was shot and killed in front of his son and the kids coming out of a Halloween party. The detective on the particular case was shot and killed by one of the defendants in the case right in front of the kid. It was a high publicity case. There were a total of about six defendants and I had two of them.
The first comment from the supervising judge of the superior court was, “She can't handle that case. She's a girl,” or something to the effect of, “She can't handle a case like that,” guess who can handle the case? It was a big and very long case. It was one death penalty sentence and one life without the possibility of parole sentence. That was one experience. The other experience on the superior court was for a time before the courts merged. The municipal court judges were looked down upon by the superior court judges. In the lunchroom, the municipal court judges had to sit there and the superior court judges would sit there and never the two shall meet. That was a long time ago. It had to be dealt with at a personal level.
I was very involved on the superior court. I was on every single committee and was chair of the technology committee for many years, which helped propel things for the future as well. I got involved in technology in the US attorney's office too because it was at a time when Word Perfect was coming into its infancy.
When I started there, the attorneys had their own secretary. That wasn't going to be able to continue. It was the cost of it. We were going to word processing. What's word processing? Do you mean I want to have my own secretary? I was up in the forefront of getting that installed in the court. I probably made a few enemies with it but it was the right thing to do. At the superior court, I was always involved in technology, trying to get this LA superior court and moving with computer technology and the internet.
It’s such a large court too. It's important to have that to function.
It was difficult to convince some of the older judges. One of the older judges, who was a good friend of mine, said, “What do we need the internet for? All you're going to do is email your kids that are in college.” Not really. I taught computer classes through the Center for Judicial Education and Research, which is a big organization that teaches judges.
Judge Emilie Elias and I taught the computer class to judges all over the state. We would travel all over the state and try to teach these older men because, at that time, there weren't a lot of older women yet. We’re trying to teach the older men, “This is a mouse. You don't hit the mouse. You touch the mouse. Don’t kill the mouse.” A lot of them use it as a very nice potted plant stand. I will send everybody their check by email and they'll learn how to use it.
I was involved in that, with the personnel committee and a variety of things. I applied for the Court of Appeals in 2000 and was elevated in 2001. At the time, it was as the judicial appointments secretary but he didn't make it easy. I didn't get appointed right away. It was towards the end of Gray Davis's term. I was getting a little bit nervous.
My interview with Burt was draining. Afterward, I said, “Burt, you asked me what my position is on all these issues but you knew them because I helped you and I was working for you in this office.” He believed in doing the right thing and doing a fine job, which he did. He appointed a lot of wonderful judges and justices. That's how that happened. Since 2001, that's where I've been on the Court of Appeal.
How did you like that compared to the trial court and your experience on the trial court? How did that inform being on the appellate bench?
You need to be a trial judge before you go to the Court of Appeal. I know there are some people that are not but in our court in the second district, there are very few who have been appointed directly without having been on a trial court or at least some period of time. I have to be honest and say that there are Court of Appeal justices who feel that the justices on the Supreme Court should have trial court experience. The reason for that is to understand what is it like down in the trenches, pick a jury and how you deal with jurors who are clearly not telling you the truth?
In a trial court, you have to make decisions very quickly and hope you're right.
It's much different seeing this in person. It is a writ of transcript that's in black and white type and say, “The trial court should have done this and the trial judge should have done that.” It was appreciating the role of the trial judge and how difficult that role is. It was good for me to have both the criminal and civil experience. That was a decision I made when I was on the superior court. I did criminal primarily. I was also a supervising judge in the superior court, which was a progression. There hadn't been a lot of women presiding judges of the superior court, not when I first started.
I had both experiences in criminal and civil but there was a point where it was time to move on. You can only do so many criminal jury trials. That's when I transferred to civil. I went Downtown and had a direct calendar court, which was a wonderful experience for me. I had done some civil at the attorney general's office but it was only four and a half years. That was a good experience to go down to the civil court, which is another thing on how you improve your own situation. You have to ask for certain things, which I did.
I asked the presiding judge who was Victor Chavez and was able to transfer right away. In civil, cases were very heavy. That was a time we were going to direct calendar and each judge had, at the beginning, up to 700 cases. Now, they all worked down so everyone handled about 350 cases, which still is a lot of cases. The civil assignment is difficult. You're doing your early morning calendar and your law and motion calendar, your ex-parties and the jury is out in the hallway waiting anxiously to get in and working with the jury until about 4:00 or 4:30 PM.
You're not leaving or walking out of the courthouse at that time. You're going back into chambers with the lawyers going over the jury instructions, verdict forms and any of the motions that have to be heard with regard to a particular trial. It's a wonderful learning experience. It's important to have those be on the Court of Appeal. It makes a total difference. We've done that work to look at it from up here to what was going on in the court. There are 500 courts just in Los Angeles.
It's such a massive system. You have a different perspective to know also the practical impact of whatever procedural rule you're announcing or applying in a particular case. You have a different sense of how feasible it is that to work day-to-day. Have you enjoyed being on the Court of Appeal as well then?
I like the Court of Appeal because you have the time to think and work things out. We each have in LA and when I say Los Angeles, it’s more than Los Angeles. Our district includes Ventura, Oxnard, Santa Barbara and Santa Maria. It's a big area. It's much different working where you have time to go over it. We each have three lawyers and the real pleasure of being on the Court of Appeal for me is working with the lawyers. It's great to work with your colleagues but they don't have a lot of time to sit down with you on a particular case. We talk about cases and do a conference. Some divisions don't conference. We talk about it.
During a period of time when we're working on the case, we will have conversations and now it's more email. Working with your colleagues is wonderful but working with my lawyers has been terrific. There are times when my lawyers and I are sitting around on the floor of my chambers with books spread out around us, “What about that case? What about this case in relation to that case?” That's the intellectual beauty of being on the Court of Appeal. You’ve got to be careful about time as you probably know.
We in the second district and in our division don't have that issue. The way it works, when we get our draw of cases, we start working on it right away. I start reading all of my briefs, plus my colleague’s briefs. I divide the cases up to my lawyers and we all start reading at the same time. We start talking about the cases and my cases at the same time. Reading my other colleague’s cases, that's what I usually do at night. That's what in my whole stack of briefs and their draft opinions. I work with my lawyers.
I don't have a timeframe at that point other than in my own brain because once I get that draw, I'm going to get another draw whether it's either 2 weeks or 1 month later but whatever the draw is. It’s divvied up by a lot of the divisions within the district that do it differently. When Roger Boren was the presiding justice, we would get new cases once a month. That has somewhat changed now. When we get our cases, it's up to us when we put them on the calendar. Our time doesn't start to run when we get the case.
Our time starts to run when the case is on for oral argument and the presiding justice at the end says submit it. That's when 90 days start to run. We go whatever time we need but when it comes to the next draw, I always compare it to Lucy and the chocolate scene. This is going to be coming and coming. If you are not keeping up with your case, the stack of briefs will go that and that. We’re good about it. Fortunately, I have three wonderful lawyers who are very focused on getting things done in a timely fashion but also having time to think about the cases.
Some cases take longer than other cases. We call them jumbo cases. Those are record cases. I got cases through the month of December. The assumption is those will be on for oral argument about six weeks later in February. I've already started getting February cases. I have about four weeks to do those cases before the next set comes in. We'll be working on those. I have the assumption that they'll be on our February calendar. The way we work in our division is we try to circulate a draft opinion about a week before the oral argument.
The oral argument is this month Wednesday. Everyone tries, if possible, to circulate a draft opinion last Wednesday. In that way, we have time to look at everyone's draft opinion and make comments on it if we think we may have a problem with the case. Our division conferences are the day before oral arguments. Our conference is tomorrow. The four of us will sit down, we have this big bench book and we have all of the cases in there that are going to be argued.
We go through each case with a fine-tooth comb. We look at typos, knits, substantive issues or whatever. That's what we do. I know that some courts also have a post-oral argument conference. Post-oral argument is informal for our division because we have chatted about what we feel about a case but if we need to talk afterward, we do. It's informal and not on a formal basis.
That's why the Court of Appeal is so much different and wonderful. The trial court was great. It's a great experience for what I do but this certainly provides a different intellectual challenge. The cases are different. People are like, “What cases do you get? What do you specialize in?” We get everything from start to finish. The only thing we don't get are death penalty cases or small misdemeanor cases. We don't get the smaller civil cases. Other than that, we do civil, criminal, family law, dependency and probate. You name it, we do it.
That's why your background in so many different substantive areas on the trial court is very helpful because you get that same variety in the Court of Appeal.
Plus the experience of having to move cases. You got to move the cases or you have to make decisions quickly. If there's an evidentiary objection, you don't get to call your research attorney and take a week to look at it. This is quick and you say, “I hope that was right.”
Do the best that you can at that moment with what you've got but you have to make a decision to keep things moving. When you're preparing for an argument or working on a case in the appellate court, are there particular things that are more helpful to you in briefs and arguments that some lawyers might like to do?
I talked about my county bar activities. I still do a brown bag lunch every year for the LA County Bar for the litigation section. I do a brown bag lunch on how trial lawyers can protect their records. Tell me where I'm going from there.
If you're interested in the bench, you have to build up your own resume. You do this by doing a good job at whatever you're doing now.
Brief writing and oral argument, which lawyers do to make the job easier.
When you and I have taught this, to be brief, it has to be accurate. It’s important that it's accurate because you, as an appellate lawyer, you know that we took every citation in a brief, every single one whether it's to the record or a case. If you think you're going to get something by us, you're dead wrong. You've got to learn to try to do that. Accuracy is important and focusing on the important things.
There are two important issues. One is the standard of review. You have to know that the standard or review is you have to be able to articulate it in your brief and you have to argue against that standard of review. If our standard of review is substantial evidence, that's difficult. You have to say, “We’re in the trial court. The evidence doesn't support the particular file.” The standard review is significant and so is prejudice. I’ll tell you how many cases we get from good law firms that don't focus on prejudice. It's not enough that there's an error. It has to be a prejudicial error.
Those are important things to focus on in brief writing. It's also important to make it easy to read. Our eyes are older. There are some young people but by large, justices are older and our eyes get more tired more easily. Make it easier to read. The good brief is set up with headings, paragraphs and spacing. Some of the justices are working completely on computers. I don't know how you do that with a 60 or 70-page brief. Many of us still print out or get written briefs. That's what I do. I'm making notes in the briefs. It makes it easy for me to make notes and most of my colleagues do the same thing.
Make it look good. My first boss at the attorney general's office used to say, “Anything that you're preparing, wrap it up in a red ribbon.” Meaning, make it look nice. It helps. Not that we're going to hold it against the client if it doesn't look right. It's just making it easier for me. There are certain sections that you have to have in a brief done in a certain way. You have to follow the rules. That's important for brief writing.
At the table of contents, do you read that first when you're going through it?
I certainly do. I look at the table at contents and the introduction. The introduction is not your closing argument. The introduction means it is without a position. It’s just the facts. Save your argument for argument. Is there anything about brief writing that you and I had taught in the past or not focused on?
The guideposts through the table of contents, being able to read that and understand. If you read the table of contents, you have the whole story of the brief. Directionally between those headings, which of those do I need to decide or is there an offer I've been at some point? If I decide in your favor on issue 1, make it clear. I don't have to go down through issues 2 and 3. I'll read it but you're off-ramp or alternatively this. A lot of people forget that.
There have to be headings in the rules of court and very often, we don't see that.
Make it clean and neat. Make sure it’s legible and all of that good stuff.
Do not use spellcheck. There are funny errors we get because people use spellcheck and they don't have anybody else read it for them. In an important case, you have to have somebody else read it because your eyes skip right over it.
You've read it so many times so you can't even see it with any sense of objectivity anymore.
You have to have a good side checker. We have had briefs where it's a contract case and the big issue is what provision C is in the contract. The brief comes and gives you a very nice description of paragraphs A, B and D. D is the critical one and they’re not going to read it. They think my judicial assistant isn't going to go and check the record on that. One of my lawyers is doing a draft for me. It sounds so basic but unfortunately, sometimes it’s true.
As far as an oral argument, I know people want to know, is there any benefit to the oral argument? The Ninth Circuit feels probably not much. They only put a few cases on for oral argument. In California, it's different. You have a right to have an oral argument and we set them for oral argument once a month. Oral argument for us is very helpful in some cases. The vast majority is not.
We've read all the briefs, written our opinions, discussed it with our colleagues, had conferenced beforehand and we pretty much know where we're going to go but there are those handfuls of cases where we don't know or we say during the conference, “I want to hear from the lawyers on this one.” You don't know which one is your case especially for civil. You should never waive oral argument. Criminal is different and the AGs often waive oral arguments on those. Parties often waive them but for civil, you should never waive oral argument.
That's my view. It's your last and the only opportunity to see the justices face to face, have a discussion and see if there are questions about the record or the development of the law that you can answer. You don't know that they have those questions and you don't have a chance to answer them.
What we want from the lawyers is a focus on the important issues. I don't want a rehash of your brief. I've read your brief. I want you to tell me what's important and be prepared to answer questions on your whole brief. Focus on what you think is important. Tell us where you think the trial judge was either right or wrong and tell us what you want us to do.
Do not stand there and read an outline. That isn't going to work. We're going to cut you off and ask questions. It's a personal thing. I don't care for lawyers that stand up and say, “I'm here to answer questions.” You can give me a one-paragraph discussion of your case. Don't bother me or don't come at all. That's just me. Oral argument is important but in some cases, you don't know if you're one of those cases.
I've had some times where there are questions about pieces or interactions in the record that I thought were clear or haven't been explained in one way but maybe it didn't connect. Sometimes, that happens to me even for oral arguments. I thought I understood everything and when I stepped back and looked at it, I did but there's another perspective that completely changes how I look at it. That would be the same way for the court.
Do you do moot court on your cases?
I always do some form of moot court, informal questions from smart objective people who haven't been involved in the case but also actual moot courts with other lawyers. Sometimes at law schools, Loyola has a great practitioner moot program especially for Supreme Court or Ninth Circuit cases that have developing issues. They can have professors who are experts in that area of the law and who also may have clerked on the Ninth Circuit or had some appellate experience on the bench.
That helps because they're digging deep into where this case fits in the law and why it should develop a certain way. Particularly with our Supreme Court in California now, it's important to have that perspective too because there are a couple of folks who came from professor backgrounds and they're going to think about issues in a similar way.
We have a fair number that have had no trial experience.
It's a different kind of questioning, I noticed. It's helpful to have that because you never know what questions are going to come. Thinking about it differently, that's what I like to do, having as many people as possible give me potential questions. I know whether I've exhausted them if the same ones keep coming back. I'm like, “Okay.” I've covered most of them.
On the side about what do I like and what I'm doing now, I have opportunities to sit with the Supreme Court when there are vacancies. They go through the roster. Every once in a while, a name comes up and I'm one of them. That's been a wonderful experience. By and large, they’re lovely people, very kind, collegial and help us. It's fun to do that and sit with them.
It's a different way, discretionary review, different issues and also give you a sense if somebody files a petition. In my case, this is the procedure and this is what's going to happen. It's always good to have a different view. Those are good tips on oral argument and brief writing. I completely agree with you never to waive and always take the opportunity if you have it because, as you noted in the Ninth Circuit, it isn't your choice. It's the court's choice only where it can be your choice. I give it up.
It's also a good experience for a lawyer to do it.
What do you think in terms of women who might be interested in the bench in the future now or might have some to figure out whether it's something they would be interested in? Do you have any suggestions or recommendations for that?
If you're interested in the bench, you have to build up your own resume. Part of that is doing a good job at whatever you're doing now. That's something I skipped over when I was talking about how I did it. I was involved in political things, in the community and in the county bar. You also have to do a good job at work too. You need to have a reputation as a good, hardworking lawyer in general.
I focus a lot on the county bar and giving back to the community and the bar. When I was running for superior court, I had the endorsement of every prior living county board president because I've done so much for the county bar and I've been involved in it. I'm sure that was a major help to my campaign. You're getting interviewed by the LA Times and by all these former bar presidents. It's helpful.
When lawyers get involved and also the county bar itself, it's easy to make a name for yourself. I'm very involved with the litigation section and have been forever so it's easy to get on the executive committee of the litigation section by volunteering to take on a committee or a role. It's easy as a barrister to get on the barrister's board, go up the barrister's ladder and to the big bar. To me, that's the number one thing you can do unless you've got some really good political connections with the governor.
You want to do very good work where you are in the firm or agency but there's only a limited number of people who are going to know about you or the quality of your work in that setting. All of this involvement in community and bar activities is the way of letting people outside that realm know your capabilities. I encourage newer lawyers to do that and start early in doing it because it takes time to develop that. You can't suddenly do it and think, “In a year or two, everyone will know me.” It's a cumulative commitment over time.
I always encourage people to do what they enjoy doing as well. If people don't enjoy doing bar things, they shouldn't do bar things. If they enjoy writing more, they like speaking or they don't want to do speaking as it scares them too much and they just rather do the writing. It's something that is authentic to you that you enjoy doing. Don't do it because you think you’re supposed to do that, “Everybody does that and I should do that.” Some people love being on community boards, not our boards, serving board of directors for arts organizations or other community organizations. That's good too.
It’s the whole range of things but thinking outside your immediate sphere is most helpful. I remember Women Lawyers of LA. I loved that board so much because it was eclectic and it was one place where you could meet many women lawyers and judges from many different practices. I would never have known someone in the US attorney's office, city attorney's office or public interest places that I didn't work with was such a range of practices and settings.
You felt like you had a better sense of the overall legal landscape and professional group in Los Angeles being in the Women Lawyers of LA. You could ask questions and explore other options if you wanted to because you knew someone that you would work with on the board. I enjoyed that about women lawyers.
The other thing that you can do is you can volunteer to work as a pro tem for the superior court. They have lots of specific things that you can do for them. There is an appellate clinic that we have. There's helping pro pers. There's a pro per group that helps at the superior court building especially the Family Law clinic and that thing for the superior court. Pro tem is doing traffic cases or small claim cases. Volunteer whatever number of hours you might have available. It doesn't have to be a full-time thing. That would be a wonderful way to get to know some of the judges who are going to endorse you when you want to run.
As a lawyer, it's easy to make a name for yourself if you focus on the county bar. Focus on the county bar and give back to the community.
My experience during that was doing appellate work. We always have so much time and we're thinking about things but you have to make quick decisions in that environment, move the calendar and all of that. It can give you a sense of what that's like and whether you enjoy that approach if you don't have that experience in your regular practice. I’m glad you mentioned the pro tem because that is often a recommendation for those who want to see, “Do I like this?” You will get the opportunity to try it and also help the court out at the same time. It works out well.
You could potentially apply to become a commissioner and your commissioner winds up becoming a judge. There are different pathways.
That's an interesting one. I also interviewed Karen Scott, who's a US magistrate judge. That's a similar kind of, “She's a judge on the district court but that's through an appointments process by the judges and the commissioner’s similar.” There are different avenues. I want to do a quick lightning round of some questions for you and see how it goes. What talent would you most like to have that you don't have?
I would love to be able to sing. I cannot carry a tune.
Do you like to listen to music? Are you a music appreciator then?
We listened to music and opera sponsors but I can't sing. When I was a young child on the temple in the child's choir at one point, I think she asked me to please move my mouth.
The same thing in the Catholic church where anyone can sing and you can go along but my friends in other churches have professional choirs and people who are good. I understand why, in some circumstances. Who are your favorite writers?
That's hard to say. The reality is I read so much for work that most of my reading for enjoyment is novels. I like good novels and literature. I like Jane Smiley. She wrote a novel named Perestroika in Paris, which was about a horse that escaped from wherever it was being kept. It was a very famous racehorse. It comes in contact with a bunch of different birds and animals and they all talk. This was the most fascinating book I had read in a long time, talking about people getting along and caring for each other even though they're different, getting to know the rat that lives in the house and the birds. It's unbelievable and it was great.
I like her work. I hadn't heard of that book so I'll have to put that on the list.
I'm going to start reading one of hers now. I don't like a lot of mysteries and thrillers. I don't read these murder books. I read those at work for pleasure and enjoyment. The one writer I like to read is Daniel Silva. He writes about a famous Mossad guy, Gabriel Allon and he’s adventurous. I read and look forward to every Daniel Silva book. It’s my escape.
It's good to have those every once in a while. For what in life do you feel most grateful?
For my family. I've got a great family. I've been married to Bob Gerst, who's a retired lawyer. We've been married for many years. We have a son who is a lawyer and married to a young woman who was also a lawyer. They had a baby. We have a very new granddaughter. We have a blended family of two older boys of Bob's and they're both lawyers. Everyone was a lawyer in our family and both daughters-in-law. The other daughter-in-law is also a lawyer. We have one daughter-in-law who's a broker. She's the only one who makes a real living and enjoys what she's doing. There are four grandchildren and we're the only grandparents of those four. They're older. There's 1 in high school, 2 are in college and 1 has graduated college.
You have quite a family with the brand new one.
I’m grateful for a wonderful family. Everyone is healthy and gets along. We celebrate the holidays together when we can. One family lives in Texas and when they have time, we bring them out here. We hate to go into Texas. They live in Houston, the weather hurts. They'll come for Thanksgiving. I always do the Jewish holidays to keep the family together. It's great.
Given the choice of anyone in the world, who would you invite to have as a dinner guest?
There are two. One would be Michelle Obama. I’d love to get to know her. The other is Jill Biden. She is awesome. I was watching her going around the country, dealing with the big and important issues. She's wonderful. They're wonderful human beings and they have a wonderful relationship. You can tell how much they care for each other. I would like to get together with them anytime. Tell them I'm available.
We'll have to point that out, having lunch with some first ladies. It would be lovely. We'll end with this one. What is your motto if you have one?
There are two of them that are pretty common from my background. One is “Justice, justice thou shalt pursue.” The other is the concept of Tikkun Olam, which means repair the world. That's where I felt it was important to get involved in the community, help minorities and women. Do what you can, like charitable contributions and work. Those two things are important to me.
You certainly have exemplified that in your work and service, both as a judge but also all of the amazing work you did in terms of lobbying and increasing access for a lot of people. You're exemplifying your motto. That's good.
It's always good to see you. Even if it's at a distance like this, it's always been good on programs. I look forward to doing it again in real life.
I look forward to doing that as well. I went to my first in-person conference since all of this has gone on with COVID. It was nice from people all around the country. You take that for granted before and now you appreciate it when you can have that.
Did you feel comfortable?
I did. The precautions were good and things still happen. You have to live your life and decide what's worth taking the risk for and see how it goes.
I've had some mixed feelings about going to certain events. We did start going, though, I have to admit, to Pauley Pavilion for UCLA basketball. They're careful. You have to show your proof of vaccination in order to get inside. You're supposed to wear a mask at all times. Not everyone does but we do it and everyone who was around us does. You still have to be cautious. The things that give you pleasure, you have to find a way.
This is an opportunity to figure out what those are because you will have to figure out your choices. That's what I've found. You have to figure out like, “What is worth the potential downsides here?” You find that out. Thank you so much for joining us and sharing your wonderful career and experiences. It’s very kind of you.
It’s my pleasure. Thank you.
Thank you so much. I appreciate it. You're a very gracious person.